Citation Nr: 1804472 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 12-28 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for sleep apnea, to include as due to service-connected lumbar spine degenerative disc disease. 3. Entitlement to a rating in excess of 30 percent prior to May 18, 2012 and in excess of 50 percent thereafter for a depressive disorder. 4. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative disc disease (lumbar spine disorder). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The Veteran had active military service in the U.S. Army from August 1991 to October 1995. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a June 2012 rating decision and July 2012 notification letter, the RO granted an increased 50 percent rating for the Veteran's service-connected depressive disorder, effective May 18, 2012. The Veteran has not expressed satisfaction with the rating assigned for either of the "stages" on appeal; therefore, the issue has been characterized to reflect that staged ratings are assigned, and that both remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In May 2017, a videoconference hearing was held before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. At the videoconference hearing, the Veteran submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) review. 38 C.F.R. § 20.1304 (2017). He also sought, and was granted, a 60-day abeyance period for the submission of additional evidence. 38 C.F.R. § 20.709 (2017). Accordingly, in September 2017, the Veteran submitted additional evidence with a waiver of initial AOJ review. Also as an initial matter, the Board notes that in November 2017, the Board sent a letter to the Veteran advising him that his VA Form 21-22, which appoints a representative, was unsigned. However, this letter was sent in error. In October 1995, the Veteran submitted a VA Form 21-22, appointing Disabled American Veterans as his representative. Although this form was not signed by the representative, it was submitted before June 2012 and did not need to be signed by Disabled American Veterans; therefore, the form is valid. As the Veteran has not appointed a new representative or indicated that he wishes to be unrepresented, the Board acknowledges that the Veteran is still represented by Disabled American Veterans for this appeal. The issue of an increased rating for a lumbar spine disorder is addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is related to his military service. 2. The Veteran's sleep apnea is caused by or related to his service-connected lumbar spine disorder. 3. For the appeal period prior to May 18, 2012, the Veteran's depressive disorder was manifested by symptoms no greater than occupational and social impairment with reduced reliability and productivity; symptoms productive of occupational and social impairment with deficiencies in most areas were not shown. 4. For the appeal period from May 18, 2012, the Veteran's depressive disorder has been manifested by symptoms no greater than occupational and social impairment with reduced reliability and productivity; symptoms productive of occupational and social impairment with deficiencies in have not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral sensorineural hearing loss disability have been met. 38 U.S.C. §§ 1110, 1101, 1112, 5100, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1157, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. For the appeal period prior to May 18, 2012, the criteria for a rating of 50 percent, but no higher, for the Veteran's service-connected depressive disorder have been met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9434 (2017). 4. For the appeal period from May 18, 2012, the criteria for a rating in excess of 50 percent for the Veteran's service-connected depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Regarding the matters of entitlement to service connection for sleep apnea, to include as due to the service-connected lumbar spine degenerative disc disease, and entitlement to service connection for bilateral hearing loss, this decision grants in full that portion of the claim that is being addressed. As this decision is completely favorable to the Veteran, there is no reason to belabor the impact of VA's duty to notify and assist in this matter. Regarding the matter of increased ratings for the Veteran's depressive disorder, required notice was provided and neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify has been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All pertinent records have been obtained, to the extent available. The Veteran was also afforded VA examinations for his claimed disability. Finally, neither the Veteran nor his representative has raised any other issues with the duty to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist argument). For these reasons, the Board concludes that VA has fulfilled its duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Legal Criteria, Factual Background, and Analysis As an initial matter, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the issues on appeal. Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system, to include sensorineural hearing loss, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2017). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2017). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in 38 C.F.R. § 3.309(a)." Walker, 708 F.3d at 1337. Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2017). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2017). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for bilateral hearing loss. It is his contention that his job, as a fire support specialist, in the military was to call in artillery and adjust rounds. The Veteran reported exposure on ranges and during field exercises to loud noise from nearby howitzers and mortars; sometimes these sounds were extremely loud. Also, after some firing exercises, his hearing would seem muffled and his ears would ring loudly for days after. See August 2010 VA examination. Impaired hearing is a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). In August 2010, a VA audiological examiner diagnosed the Veteran with normal to moderately severe sensorineural hearing loss in the right ear and normal to moderate sensorineural hearing loss in the left ear. The VA audiological examiner based his findings on speech recognition testing (Maryland CNC) results of 98 percent in each ear and the following audiometric results in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 45 60 LEFT 10 15 20 35 45 Thus, the Veteran's bilateral sensorineural hearing loss constitutes a disability for VA purposes. 38 C.F.R. § 3.385 (2017). Veterans are competent to attest to noise exposure during service, Layno v. Brown, 6 Vet. App. 465, 470 (1994), and the Veteran's statements in this case are consistent with the places, types and circumstances of his military occupation. See 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a) (2017). Notably, the Veteran is already service-connected for tinnitus, which was determined to be related to his history of noise exposure in service. Therefore, the Veteran's exposure to noise trauma in service is established. The question to be resolved in this case is whether the Veteran's current bilateral hearing loss disability is related to his in-service noise trauma. In weighing the evidence of record, the Board finds that the most probative evidence of record is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is related to his service. In August 2010, a VA audiological examiner opined that the Veteran's current bilateral hearing loss was less likely as not (less than 50/50 probability) related to his military service. The VA examiner explained that a review of the service treatment records showed that on the Veteran's May 1991 enlistment physical, his hearing for the right ear was within normal limits at 500 Hz through 4000 Hz with a mild loss at 6000 Hz, and his hearing in the left ear was within normal limits at 500 Hz through 6000 Hz. On July 1995 service separation examination, audiometry showed that the Veteran continued to have hearing within normal limits at 500 Hz through 4000 Hz in both ears. The VA examiner noted that a comparison of the Veteran's July 1995 separation physical audiogram with his May 1991 enlistment physical audiogram showed no significant threshold shift of hearing at 500 Hz through 4000 Hz for either ear. The VA examiner further noted that clinically, significant threshold change is commonly considered to be a change in hearing threshold greater than normal test/retest variability of 10 decibels. According to the DVA Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examination, the DOD criteria for significant threshold shift (STS) is a shift of +/- 15 decibels or greater at 1000 Hz, 2000 Hz, 3000 Hz, or 4000 Hz, or a shift of +/- 10 decibels or greater averaged across 2000, 3000, and 4000 Hz, in either ear. The VA examiner explained that had the Veteran sustained permanent hearing loss or significant threshold shift in 500 Hz through 4000 Hz range during the course of the Veteran's military service, it would have shown on his July 1995 separation physical hearing test, and would not have delayed in onset. The examiner further noted that there were no civilian audiograms shortly after service that would refute or put in to question the results from the military separation physical audiogram. The VA examiner also explained that although the Veteran did not show a significant threshold shift of hearing for either ear at 500 Hz through 4000 Hz, he did show a significant change of hearing (down 20 decibels) at 6000 Hz for the right ear. However, VA does not consider frequencies above 4000 Hz in making rating determinations for hearing loss. Also, given the significant decrease of high frequency hearing over the years since the Veteran's separation from service (evidenced by comparing his current audiogram with his July 1995 separation audiogram), it was apparent that there were factors after military service that had caused the Veteran's current bilateral high frequency hearing loss, which most likely including idiopathic (unknown) causes, and possible occupational noise. During testimony at the May 2017 Board hearing, the Veteran testified that he was constantly exposed to loud noise in service from adjusting mortars, howitzers, and bombs. The Veteran stated that he first started noticing problems with his hearing within about a year of getting out of service. However, the Veteran waited to get his hearing checked because he was "stubborn" and just "chalked it up as selective hearing or whatever." During his testimony, the Veteran conceded that he had jobs after service which involved occupational noise exposure, including in welding and maintenance. However, he noted that he wore hearing protection. See August 2017 Hearing Transcript. After reviewing the foregoing evidence, the Board finds more probative the competent and credible lay statements from the Veteran. As noted above, he is competent to provide lay evidence of symptoms such as difficulty hearing, as they are capable of lay observation. He has also been consistent in his reports that his hearing loss began within a year of his separation from service, and provided explanation at the May 2017 Board hearing for why he did not seek medical treatment for his bilateral hearing loss earlier. The Board finds no reason to question the sincerity of the Veteran's claims with respect to his bilateral hearing loss. The Board acknowledges that the August 2010 VA examiner provided a negative opinion in this case. However, this opinion was based solely on the lack of documentation of hearing loss for VA purposes in the Veteran's service treatment records and separation examination and did not address the Veteran's competent and credible assertions of having experienced hearing loss shortly after service. While the absence of clinical demonstration of hearing loss after service is for consideration, it is not fatal to, or dispositive of, the claims. The Board finds that the Veteran is credible as his assertions are consistent with the circumstances of his service as a fire support specialist, and there is no objective evidence which contradicts such assertions. The Veteran also provided a reasonable explanation for why he did not seek medical treatment for hearing loss in service or immediately thereafter. His credible and consistent testimony also clarifies that he regularly practiced hearing protection measures during his post-service occupational noise exposure. Therefore, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is related to his service. Resolving reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159(c)(4), 3.303(b), 3.309(a) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Sleep Apnea The Veteran is seeking entitlement to service connection for sleep apnea, to include as secondary to service-connected lumbar spine disorder. The Veteran contends that the medications that he is taking for his back pain caused his sleep apnea. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of a current disability (for which secondary service connection is sought); (2) evidence of a service connected disability; and (3) competent evidence that the current disability was either caused or aggravated by the service connected disability. 38 C.F.R. § 3.310(a) (2017); see also Allen v. Brown, 7 Vet. App. 439 (1995)(en banc). The competent evidence of record supports a finding, and it is not disputed, that the Veteran has a current diagnosis of sleep apnea. See, e.g. July 2010 VA examination and September 2010 VA addendum opinion. The record also reflects that the Veteran has been awarded service connection for lumbar spine degenerative disc disease. Next, the Board will look to and weigh the medical opinions of record to determine whether the Veteran's sleep apnea is due to or aggravated by his service-connected lumbar spine disability. There are medical opinions of record that are for and against the Veteran's claim. In July 2010, the Veteran was afforded a VA examination for his spine. The VA examiner opined that the Veteran's central sleep apnea was as likely as not related to his treatment for his back injury. In September 2010, a VA addendum opinion was obtained to clarify the July 2010 VA examination. The same VA examiner who provider the opinion in July 2010 also provided the addendum opinion in September 2010. In September 2010, the VA examiner opined that the Veteran's medications (which he had been taking for back pain as early as 2001) did not permanently worsen his central sleep condition beyond its normal progression. The VA examiner explained that if the medications were stopped, the sleep condition would go back to pre-medication state. The examiner further noted that the Veteran's sleep study showed central sleep apnea, with only one episode of what could be considered obstructive. Therefore, stopping the medications should stop the sleep apnea. In September 2017, the Veteran submitted a copy of an August 2017 VA treatment record which was accompanied by a letter from his treating VA healthcare provider, P.C., D.O., dated September 2017. In his letter, P.C. D.O., stated: "[The Veteran] is currently being treated with high dose narcotics (methadone 10 mg) which can cause sleep apnea[.] He has been on them for 10 years. This could contribute to his sleep apnea." In August 2017 VA treatment record, P.C., D.O., stated that based on a review of the causes of obstructive sleep apnea, it was very likely that the Veteran's sleep apnea could have been due to chronic narcotic use. The VA healthcare provider noted that the Veteran had been on chronic narcotics and very high doses for about 10 years. After reviewing the foregoing medical opinions, the Board notes that the September 2010 VA addendum opinion, which is the only negative opinion of record, was based on an inaccurate legal premise. Specifically, that opinion found that the Veteran's medications did not permanently worsen his sleep apnea. However, the question of aggravation in a claim for service connection on a secondary basis requires consideration of whether there is any increased in severity beyond the natural progression of the claimed disability. See generally Allen v. Brown, 7 Vet. App. 439, 445, 448-49 (1995) (explaining that aggravation in the context of secondary service connection should be interpreted to mean "any increase in disability," which is distinguishable from the narrower form of "aggravation" described in 38 U.S.C. § 1153). Therefore, the September 2010 VA addendum opinion has no probative value and does not weigh against the Veteran's claim. The Board finds that the remaining medical opinions of record are at least in equipoise as to whether the Veteran's sleep apnea is related to his service-connected lumbar spine disorder. Therefore, resolving all reasonable doubt in the Veteran's favor, secondary service connection on a secondary basis for sleep apnea is warranted. Increased Rating for Depressive Disorder Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155 (2017); 38 C.F.R. §§ 3.321(a), 4.1 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In addition, the United States Court of Appeals for Veterans Claims (Court) has determined that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Currently, the Veteran's depressive disorder is assigned an evaluation of 30 percent prior to May 18, 2012, and an evaluation of 50 percent from that date under 38 C.F.R. § 4.130, Diagnostic Code 9434. Under these criteria, a 30 percent is warranted where the psychiatric condition produces occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9413 (2017). A 50 percent rating is warranted where the psychiatric condition produces occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where the psychiatric condition produces occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where the psychiatric condition results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21 (2017); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Global Assessment Functioning (GAF) scores of 61-70 indicate some mild symptoms or some difficulty in social, occupational, or school functioning, with the ability to generally function pretty well and have some meaningful personal relationships. DSM-IV (1994). GAF scores of 51-60 indicate moderate symptoms, such as a flat affect, circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, as evidenced by having few friends and having conflicts with peers or co-workers. Id. GAF scores of 41-50 indicate serious symptoms, such as suicidal ideation, severe obsessional rituals, and frequent shoplifting, or serious impairment in social, occupational, or school functioning, as evidenced by having no friends and being unable to keep a job. Id. GAF scores of 31 to 40 reflect some impairment in reality testing or communications (e.g. speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g. depressed man avoids friends, neglect family, and is unable to work). Id. It is important to note that a GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Secretary of VA recently amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). However, the amended provisions do not apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the Agency of Original Jurisdiction. The instant appeal was initially certified to the Board in June 2016. Therefore, the amended version of the Schedule for Rating Disabilities is for application in the instant appeal. As an initial matter, the Board notes that the effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. §§ 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2016); see also Hazan v. Gober, 10 Vet. App. 511 (1997). In this case, the Veteran's request for an increased rating for his depressive disorder was received on or around April 2010. A review of the Veteran's medical records for the year preceding that date do not show that, at any point within that one year period, it was objectively shown or factually ascertainable that an increase in depressive disorder occurred. Therefore, the focus of this decision will be on the body of evidence added to the record subsequent to the Veteran's April 2010 claim for increase. In March 2010, the Veteran visited a VA outpatient clinic for his mental condition. Upon mental status examination, the VA doctor noted that the Veteran was alert, cooperative, and appeared to be fairly groomed with hygiene. The VA doctor noted that the Veteran's affect was restricted in range and concordant with his subdued mood. The Veteran denied self-destructive thoughts and urges. The VA doctor concluded that the Veteran's insight was fair and his cognitive functions were intact. The VA doctor diagnosed the Veteran with mood disorder and assigned a GAF score of 47-51. In August 2010, the Veteran was afforded a VA examination for mental disorders. The Veteran was diagnosed with a mood disorder and assigned a GAF score of 61. The VA examiner concluded that the Veteran's mental disorder symptoms were controlled by continuous medication and were not severe enough to interfere with occupational and social functioning. The VA examiner noted that throughout the Veteran's claims file records and medical records, the Veteran stated that his depression/mood disorder symptoms were due to his problem with pain. The VA examiner opined that the Veteran's complaints of irritability and depressed mood were most likely caused by or a result of pain. The Veteran reported that he was more depressed and mood, but stated that he noticed a small benefit from his antidepressant. Also, his relationship with his wife had improved. However, the Veteran indicated that things were more difficult for him at work, but he denied any functional or disciplinary problems as a result. He also denied other symptoms of depression (e.g., no appetite problems, adequate energy level, no feelings of worthlessness, adequate concentration) and attributed his loss of interest in activities to working too much. In May 2012, the Veteran was afforded a VA examination for mental disorders. The Veteran was diagnosed with mood disorder due to a medical condition (pain). and assigned a GAF score of 55. The VA examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he was irritable and mood much of the time. He reported that he went to work. His wife was "pretty understanding." The Veteran reported that they were both frustrated and argued. He reported that he used to like to take the boat out, but the last time he took it out was five years ago. He reported that he had two children, but his activities with them were limited. The Veteran reported that he went to his daughter's soccer game and visited relatives. He reported that he had some good days in terms of his mood; however, he expressed frustration more days than not. He did not spend much time with his friends and lost interest in sex. The VA examiner reported that it was unclear whether it was due to mood disorder, pain, or the medications he was on. The Veteran denied issues with illegal drugs and alcohol; however, he smoked cigarettes. The Veteran reported that he was addicted to methadone that he was prescribed. However, he took it as prescribed. The VA examiner noted that the Veteran's symptoms included depressed mood, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including in a work or work like setting. The VA examiner reported that the Veteran could not be diagnosed with a substance use disorder; however, the Veteran did have a mood disorder related to chronic pain. The VA examiner reported that that the Veteran noted significant depressed mood, worry about future pain concerns about ability to function, reduced interest in activities like boating and fishing, isolation, and especially irritability. It appeared that the Veteran was still able to work, but that this mood disorder caused him more irritability and hence more friction with coworkers. The Veteran clearly denied being physically aggressive with anyone and did have ability to control his impulses. The VA examiner opined that the Veteran's mood disorder was secondary to his back pain which was service connected. Therefore, his mood disorder was also related to his military service. In January 2016, the Veteran was afforded a VA examination for mental disorders. It was noted that the Veteran was diagnosed with depressive disorder due to another medical condition. The VA examiner noted that the Veteran's symptoms included depressed mood, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. The VA examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The Veteran reported that he had been married to his wife for 16 years; it was his second marriage. The Veteran stated that he and his wife interacted "fine." The Veteran had two children whom he got along well with. The Veteran reported that primarily depends on his wife. He reported that his spare time, he did not do much of anything; however, he liked to ride his bike. The Veteran denied use of illegal drugs since his May 2012 VA examination. The Veteran noted that his methadone medicine kept his pain at a moderate level; however, he thought he was addicted to it. Upon mental status examination, the VA examiner reported that the Veteran was alert and oriented to person, place, date, time, and situation. The Veteran's clothing was appropriate to the situation and weather. The Veteran exhibited acceptable hygiene. The Veteran's speech was within normal limits with regard to rate, rhythm and volume. The Veteran's affect was irritable and constricted. He described his mood as indifferent, and that he got irritated "pretty easy." The VA examiner noted that the Veteran endorsed symptoms of depression, including sleep deficit, irritability, a variable appetite, some lack of interest in activities, and low energy. The Veteran did not report thoughts of suicide. However, it was noted that the Veteran got angry and had thoughts of harming others, although he denied current intent to do so and did not have a plan. The Veteran did not report nor were there clear indications of obsessions, compulsions, panic attacks, or manic symptoms. The VA examiner noted that the Veteran's thought processes were linear and that there were no indications of delusions or hallucinations. The VA examiner noted that the Veteran did not have significant long term memory issues. The Veteran reported that he was able to keep up with his basic hygiene, cook, clean, and complete other basic chores. However, the Veteran stated that his back problems often interfered with getting chores done. In August 2017, the Veteran had a hearing before the Board. The Veteran stated he was on medications for his mood disorder, and he saw his doctor for his mood disorder at least once every three to six months. The Veteran also reported that he was working. He reported that he preferred working by himself and that he had been in some disagreements because of his mood disorder. The Veteran also stated that he did not like to go out with friends or be out in a crowd. He did not want to be around people and had unprovoked irritability. As noted above, the Veteran's service-connected depressive disorder is currently assigned a 30 percent rating for the appeal period prior to May 18, 2012, and a 50 percent rating from that date. After considering the evidence of record under the laws and regulations as set forth above, the Board finds that a 50 percent rating, but no higher, is warranted for entire appeal period. For the appeal period prior to May 18, 2012, a 50 percent rating, but no higher, is warranted for the Veteran's service-connected depressive disorder. The evidence of record shows that the Veteran's disability picture more closely approximates occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms included depressed mood, irritability, and difficulties at work. The Veteran also had to take medication for his symptoms. Although the VA examiner in August 2010 concluded that the Veteran's mental condition was not severe enough to interfere with occupational and social functioning, the VA examiner assigned the Veteran a GAF score of 61. Further, in March 2010, the VA doctor assigned the Veteran a GAF score of 47-51. These GAF scores indicate that the Veteran's depressive disorder symptoms range from mild to serious. Based on the totality of the evidence for the period prior to May 18, 2012, the Board concludes that a rating of 50 percent is warranted. However, for the appeal period prior to May 18, 2012, and thereafter, a rating in excess of 50 percent is not warranted. Throughout these periods on appeal, the Veteran had fair grooming and hygiene. The Veteran was able to maintain his basic hygiene, cook, clean, and complete other basic chores. The Veteran also stated that he liked to ride his bike. Also, although the Veteran had unprovoked irritability, was moody, and disliked being around crowds of people, he was still able to work. The VA examiner in May 2012 opined that it appeared that the Veteran was able to work even though the Veteran's mood disorder caused more irritable and hence friction with coworkers. Furthermore, the Veteran sustained a relationship with his wife and children. Also, the Veteran denied suicidal ideation. Although he had thoughts of harming others, there was no plan or intent to carry it out. Also, the Veteran did not have delusions or hallucinations. Moreover, the Veteran did not report impaired judgment, obsessions, compulsions, panic attacks, or manic symptoms. Additionally, VA examiners have concluded that the Veteran's symptoms, at most, demonstrate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of instability to perform occupational tasks. In short, for the period on appeal prior to May 18, 2012 and thereafter, the Veteran's depressive disorder is productive of occupational and social impairment consistent with a 50 percent rating; the criteria for a higher 70 percent rating have not been shown. ORDER Service connection for bilateral hearing loss is granted. Service connection for sleep apnea is granted. A rating of 50 percent (but no higher) for depressive disorder prior to May 18, 2012, is granted, subject to controlling regulations applicable to the payment of monetary benefits. A rating in excess of 50 percent for depressive disorder from May 18, 2012, is denied. REMAND The Veteran was last afforded a VA examination for his lumbar spine disorder in January 2016. During his May 2017 hearing before the Board, the Veteran asserted that his lumbar spine disorder had worsened since that examination. Specifically, he reported that his back caused incontinence and sexual issues. He also noted that he was scheduled for an appointment with a neurosurgeon in July 2017. Given the above, on remand, the Veteran should be afforded a new VA examination to determine the nature and severity of his lumbar spine disorder. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Updated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate with the claims file. Attempts should be made specifically to locate any neurosurgery treatment records from July 2017. If any requested records are not available, such should be noted for the record. 2. Once that development has been completed, schedule the Veteran for a new VA examination to determine the nature and severity of the service connected lumbar spine disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected lumbar spine disorder. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the applicable criteria, 38 C.F.R. § 4.71(a), Diagnostic Code 5242, to specifically include whether the Veteran suffers from any incontinence or sexual issues as a result of his service-connected lumbar spine. The examiner must explain the rationale for all opinions given. If he or she is unable to provide any opinion sought, it must be so noted for the record, and the reason therefore explained. 3. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claim. If the issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs